Monday, April 29, 2013

Conviction Affirmed, Sentence Vacated In Crack Conspiracy Case

US v. Allen: Allen was involved in a large crack distribution operation in North Carolina.  Although he conceded that he had sold drugs to a member of the conspiracy, he denied being part of the conspiracy itself.  He was convicted of conspiracy to possess with intent to distribute 50 grams or more of crack cocaine and sentenced to the then applicable mandatory minimum sentence of 10 years.

On appeal, Allen challenged his conviction and sentence.  As to his conviction, Allen first argued that the evidence showed two transactions, but not any involvement in the larger conspiracy.  The court disagreed, noting that the amount Allen sold, over such a short period of time, was certain to be distributed by the conspiracy.  Second, Allen argued that the district court erred by refusing to let him see the PSRs and sealed sentencing memoranda of others convicted in the conspiracy.  The court disagreed, holding that Allen's "conclusory" claims about what those document might reveal did not justify disclosure.  Third, Allen argued that the district court erred by not allowing him to present expert testimony to help explain the impact of the plea agreements entered into by other codefendants.  The court disagreed, concluding that expert testimony of that nature was not appropriate under the Federal Rules of Evidence.  As to Allen's sentence, the Fourth Circuit agreed that the Fair Sentencing Act applied and Allen was not subject to a 10-year mandatory minimum sentence.  It vacated the sentence and remanded.

Unnecessary Cardiac Stents Can Support Health Care Fraud Conviction

US v. McLean: McLean was a heart doctor who performed (among other things) procedures that inserted stents into the arteries of those with blockages.  Following an internal investigation at the hospital where he worked, which led his resignation, McLean was charged with health care fraud and several counts of filing false paperwork as a part of the fraudulent scheme.  The basis for the fraudulent scheme was that McLean would bill insurance companies for medically unnecessary stent procedures (i.e., a procedure where the arteries weren't blocked enough to warrant it).  After trial, McLean was convicted and sentenced to 97 months in prison.

On appeal, McLean challenged both his convictions and his sentence.  The Fourth Circuit affirmed.  As to his convictions, McLean raised three arguments.  First, he argued that the health care fraud statute as applied to him was unconstitutionally vague because it contained no clear standard of "medical necessity."  The court disagreed, concluding that the requirement that the Government prove the fraud was done "knowingly and willfully" covered any fair notice argument McLean might have.  Second, McLean argued that there was insufficient evidence to support his convictions.  The court disagreed, concluding that there was sufficient evidence from which a jury could conclude he was guilty (see the opinion for a lengthy discussion of those facts).  Third, McLean argued that several evidentiary issues deprived him of a fair trial.  The court disagreed, finding no Brady error with regard to one piece of evidence and no abuse of discretion on the district court's part on the others.  As to his sentence, McLean argued that the district court erred when calculating the amount of loss attributable to him.  The court disagreed, finding no clear error in the district court's acceptance of the hospital's calculation of loss that included additional expenses incurred beyond the actual payments fraudulently obtained.

Categorical Approach, Not Modified, Applies to Oregon Prior Drug Distribution Charge

US v. Medina-Campo: Medina-Campo, a Mexican national, was deported in 2005 following his conviction in Oregon on several drug counts, including distribution of heroin, for which he was sentenced to 24 months in prison.  After being stopped for DUI in Maryland, Medina-Campo was charged with illegal reentry after having been deported due to an "aggravated felony."  He pleaded guilty.  At sentencing, the district court applied a 16-level enhancement based on Medina-Campo's prior conviction being a "drug trafficking offense" (over Medina-Campo's objection) and sentenced him to 50 months in prison, 7 months below the bottom of the Guideline range.

On appeal, Medina-Campo challenged his sentence, arguing that his prior conviction was not a drug trafficking offense, as defined by the Guidelines, and his true sentencing range was only 15 to 21 months, because Oregon law include solicitation of the delivery of drugs within the delivery statute.  The Fourth Circuit disagreed and affirmed his sentence.  The court concluded that a regular categorical approach, rather than a modified one, was appropriate, rejecting Medina-Campo's argument that the Oregon statute at issue delineated multiple offenses.  Applying that approach, the court concluded that any conviction under the Oregon statute is a "drug trafficking offense."

Saturday, April 20, 2013

Duplicates are counted as separate images for §2G2.2(b)(7)

US v. PriceSean Price uploaded images of child pornography to and West Virginia State Police traced the images to Price’s email account.  The state police obtained a search warrant and seized several computers and hard drives from Price’s home.  Fifteen images were discovered on the hard drives; Price also submitted to an interview with police in which he admitted to possessing child pornography. 

Sometime after the police search and seizure at Price’s residence, four emails containing attachments of child pornography were sent to ninety-three individuals.  The emails were sent to appear as if the sender was a West Virginia State Police Sergeant.  Price later admitted that he created the subterfuge of sending the emails. 
A grand jury indicted Price with accessing the internet via computer with the intent to view child pornography; Price pleaded guilty.   The district court sentenced Price as if he had possessed well over 600 images, based on the images sent in the emails, multiplied by the number of recipients.  Price wanted the district court to count only those images he actually possessed, 113, and that he did not duplicate the images when he sent them to multiple individuals via email. 
The Fourth Circuit determined that the language of the Application Note 4 to U.S.S.G. §2G2.2 , “[f]or the purpose of determining the number of images under subsection (b)(7):  each photograph, picture, computer or computer-generated image, or any similar visual depiction shall be considered to be one image,”  means that each and every image, regardless of originality, must be counted separately. 

Two trial errors not reversible error in tax fraud case

US v. WoodsA grand jury charged Michael Woods with multiple counts of preparing and presenting false and fraudulent tax returns, wire fraud, identity theft and aggravated identity theft, in connection with his side business of preparing tax returns for private individuals (Woods worked full-time for the U.S. Department of Veterans’ Affairs  as a data warehouse manager). 

The government alleged that Woods added false information to his private customers’ tax returns in order to qualify them for substantial refunds.  Woods also allegedly listed non-existent dependents for some customers, for which he charged $500 in extra fees, by stealing names of false dependents from the VA computer system.   Woods represented himself at trial with stand-by counsel; after a four-day trial, a jury convicted him on all counts. 
Woods appealed several trial issues, two of which the Fourth Circuit determined to be errors:  1) that the government made an improper statement in closing argument, by stating that Woods lied under oath at trial about part of his fraud scheme; and 2) the district court improperly declined to issue a jury instruction about Woods’ good character.   Despite a finding that the government’s statement in closing was improper and that plain error results when the government statutes that a defendant has lied under oath at trial, the Fourth Circuit determined that the trial was not impacted by the improper statement, because a considerable portion of the government’s evidence directly contradicted Woods’ theory of defense.  Further, the government’s line of questioning a defense witness, in which Woods’ guilt was assumed for the purpose of influencing the content of the witness’s character testimony, and the district court’s decision not to give a good character jury instruction based on the tainted line of questioning, was similarly improper.  The Fourth Circuit concluded that the jury would have concluded that Woods was guilty with or without the jury instruction.  Ultimately, the two errors were not reversible error, and the Fourth Circuit affirmed the convictions. 

TN statutory rape conviction not “crime of violence” for sentencing enhancement

US v. Rangel-CastanedaRangel-Castaneda received an indictment for one count of illegal re-entry after his arrest in 2010 for driving while impaired and failing to register as a sex offender. He pleaded guilty to this offense in June 2011.  Previously, Rangel-Castaneda had received a conviction in Tennessee for having sex with his then-girlfriend, who was 16 years old at the time, for aggravated statutory rape.  At Rangel-Castaneda’s sentencing for illegal re-entry, the district court considered the Tennessee statutory rape conviction a “crime of violence” for sentencing enhancement purposes.   Rangel-Castaneda appealed the propriety of this sentencing decision.

The Fourth Circuit determined that Rangel-Castaneda’s Tennessee statutory rape conviction was not a “crime of violence” for sentencing enhancement under U.S.S.G. § 2L1.2(b)(1)(c).   Because Tennessee’s statute sets the age of consent at 18, significantly broader than the generic statutory rape offense across the country (the generic age of consent, based on a canvas of many states’ rape statutes, is 16), the Tennessee statute is overbroad under a “categorical” approach to determine whether a conviction qualifies as a “crime of violence.”  According to the Fourth Circuit, the disparity between the predicate state crime here and Rangel-Castaneda’s contended generic offense “cannot be considered insignificant.”  Moreover, to hold the statutory rape conviction here as a “crime of violence” would criminalize behavior that in neighboring states would be perfectly legal is just the kind of odd and unjust result that the Supreme Court intended to preclude with Taylor v. United States. 

Crack sentence reduction permitted when district court made no specific finding of defendant’s drug relevant conduct

US v. MannConvicted in 1998 for cocaine and crack offenses, Mann had originally been sentenced according to the Sentencing Guidelines in place at that time.  Then, a defendant responsible for 1.5 kilograms of more of crack received a base offense level of 38, the highest quantity-based base offense level, no matter how much cocaine was also involved in Mann’s convictions.  Mann petitioned for a reduction in his sentence when the Sentencing Commission changed the penalties for crack offenses in 2008 and in 2011.  Pertinent to this appeal, the district court that originally sentenced Mann gave him a sentencing reduction, finding that the record did not support a finding, as the government argued, that Mann should have been held responsible for 8.4 kilograms of crack and that he should be ineligible for a sentencing reduction. 

The Fourth Circuit held that the district court did not clearly err in its decision that it made no (uncorrected) finding that Mann had been responsible for any specific amount above 1.5 kilograms of crack.  Additionally, the Government argued that the district court, at Mann’s resentencing, could make additional findings as to drug amounts, consistent with its original findings, in making a resentencing determination.  Other circuits have held that addition findings are within the district court’s discretion; however, the Fourth Circuit held that the district court did not abuse its discretion by deciding not to make additional findings here, more than a decade after the original sentencing.

Tuesday, April 02, 2013

Officer Lie to Obtain Search Warrant Voids Guilty Plea

US v. Fisher: Fisher was arrested and charged with possession with intent to distribute crack and being a felon in possession of a firearm after a search of his home, pursuant to a warrant, uncovered drugs and a gun.  Fisher pleaded guilty to the felon in possession count and was sentenced to 10 years in prison.  The warrant to search Fisher's home had been procured by a DEA agent named Mark Lunsford who, in the affidavit supporting the warrant application, told of a tip from a confidential informant who had provided reliable information in the past.  A year after Fisher pleaded guilty, Lunsford himself was charged with crime related to his duties as a DEA agent.  As relevant to Fisher's case, he admitted that the CI identified in the warrant affidavit "had no connection to the case" and that someone else was the "real informant."

After Lunsford entered a guilty plea based on his misconduct, Fisher filed a pro se motion to vacate his guilty plea.  The district court eventually (after appointing counsel for Fisher) denied the motion, concluding that although Fisher almost certainly would have filed a motion to suppress had he known of Lunsford's false affidavit and that motion might have been successful, he nonetheless admitted his illegal possession of the firearm. Thus, not allowing him to withdraw his guilty plea would not work a "miscarriage of justice."  The district court also noted that neither Fisher's counsel nor the Government knew of Lunsford's duplicity and could not be faulted for allowing him to enter the plea.

On appeal the Fourth Circuit reversed, 2-1.  The court recognized that to set aside a guilty plea because it is involuntary a defendant must show (1) some egregiously impermissible conduct and (2) that the misconduct influenced the decision to plead guilty.  The court found that Fisher met the first requirement because "government misrepresentation constitutes impermissible conduct."  It recognized that this case involved "highly uncommon circumstances in which gross police misconduct goes to the heart of the prosecution's case."  Furthermore, Fisher did not seek to withdraw his plea merely because of buyer's remorse - he  calculated his options and calculated incorrectly - but because of a misapprehension about the strength of the Government's case brought about by police misconduct.  The court held that it was immaterial that Fisher did not claim to be actually innocent of the charge to which he pleaded guilty.  The court also concluded that Fisher likely would not have pleaded guilty had he known about Lunsford's fraudulent affidavit.  As a result, the totality of the circumstances required the vacation of Fisher's plea because it was involuntary and made in violation of his due process rights.

Judge Agee dissented, arguing that the court's application of the "affirmative misrepresentation" standard had no basis in prior precedent and that, ultimately, Fisher is stuck with his guilty plea.